Papers by Nilima Bhadbhade
Published as part of Studies in the Contract Laws of Asia II: Formation and Third Party Beneficiaries, edited by Mindy Chen-Wishart, Alexander Loke, and Stefan Vogenauer, published by Oxford University Press
The Indian law recognizes the privity rule that prevents enforcement of a contract by third party... more The Indian law recognizes the privity rule that prevents enforcement of a contract by third party beneficiaries. This Chapter states the Indian law relating enforcement of terms of a contract by third party beneficiaries.
Click or copy this link for a preview of this article: https://books.google.com/books/about/Formation_and_Third_Party_Beneficiaries.html?id=FkBFDwAAQBAJ
This doctrine of privity was incorporated into the Indian law before the Indian Contract Act 1872 was enacted. Althouth the Act does not state the privity rule, it’s existence in the Indian law is attributed to the language of the provisions of the Act, and also as incorporation of the English law into the Indian law. Indian judgments have found ways around the rule in the well-accepted exceptions also found in the English law, recognition of some exceptions in the peculiar Indian circumstances, and by classifying the privity rule as a rule of procedure rather than in substance.
Pravartak, the Magazine for Insurance Practitioners, Volume IX, Issue 1, pp 47-52 in January 2015 , Jan 2015
Free-look provisions in life and health insurance allow the insured to return the policy without ... more Free-look provisions in life and health insurance allow the insured to return the policy without giving reasons. This is easier said than done.
Click or copy this link for the article: https://obiterdictadotin.files.wordpress.com/2019/06/a-close-look-at-the-free-look-option-in-insurance-policies.pdf
“Free-look period” provisions in insurance policies give to an insured the very important right to withdraw from his insurance contract that he has already concluded, and give him time time for thought so that he can take a conscious decision about ending the insurance contract. Free-look period provisions are mandatory in life and health insurance policies. This article analyses free-look provisions in different statutory instruments that mandate the provision, and in sample policy wordings, brochures and free-look cancellation forms. This article examines the true purpose of this provision and its use, and proceeds to posit that this provision gives to the insured an additional right to withdraw from the contract, and that it does not and cannot have the effect of terminating or extinguishing the rights of an insured under law. It suggests a model standard free-look provision.
Paper at Seminar :Specific Enforcement of Contracts, Mar 9, 2013
Specific performance ought to be available in the Indian law as a routine remedy, rather than bei... more Specific performance ought to be available in the Indian law as a routine remedy, rather than being exceptional.
Click or copy this link for the article: https://obiterdictadotin.files.wordpress.com/2019/06/exceptional-nature-of-specific-performance-in-the-indian-law.pdf
"In Indian law, specific relief giving enforced performance of a contract is by way of a decree of specific performance, or injunction – prohibitory or mandatory. But it is granted as an exception, in cases where compensation either is not ascertainable or is inadequate, and where it is possible of effective enforcement.
A plaintiff seeking specific performance must satisfy ‘ the inadequacy test’ at the threshold, which makes specific performance an exceptional remedy. Although other factors, viz. plaintiff’s conduct, and exercise of discretion by the Court affect availability of specific performance, this article discusses the role of the inadequacy test in the grant of specific relief. Even though the inadequacy test is fulfilled, the Court must be able to make its decree enforceable. This limitation on court’s power is also discussed. The article supports the view that specific performance must be available as a routine remedy, so that a promisee can choose specific performance."
IRDA Journal, Oct 16, 2012
If insurance policies were in plain language, policy-holders will understand them.
Click or copy ... more If insurance policies were in plain language, policy-holders will understand them.
Click or copy this link for the article: https://obiterdictadotin.files.wordpress.com/2019/06/simplifying-insurance-policies-e28093-importance-of-plain-language.pdf
The article proposes that insurers should offer insurance policies in plain language. It discusses examples and illustrations from policies of health insurance. Using plain language will help the insured in understanding what he has bought, and also officers of insurance companies in taking fast and effective decisions. Shifting to plain language requires getting over the fear and anxiety of shedding legalese. The article also gives links to articles, handbooks and websites about plain language. The entire article is posted with permission from the IRDA Journal.
A Power of Attorney authorising sale of immovable property is liable for stamp duty as if a conve... more A Power of Attorney authorising sale of immovable property is liable for stamp duty as if a conveyance.
Click or copy this link for this article:https://obiterdictadotin.files.wordpress.com/2019/06/stamp-duty-on-powers-of-attorney-authorising-sale-of-immovable-property.pdf
Powers-of-Attorney (POA) and transactions of immovable property are liable to stamp duty under the State (not Central) laws of India. Stamp duty is a revenue for the government. Ordinarily, a POA carries very small amount of stamp duty. However, in 2008, the Bombay Stamp Act was amended and a POA authorising sale of immovable property was liable for the same stamp duty as a conveyance of immovable property. Laws in other states make similar provisions. The article criticises this Amendment.
All India Reporter, cited as AIR 2006 Jour 177
Can and should a development contract be specifically enforced?
Click or copy this link for this ... more Can and should a development contract be specifically enforced?
Click or copy this link for this article: https://obiterdictadotin.files.wordpress.com/2019/06/supreme-court-on-a-development-contract-an-analysis-based-on-principles-of-contract-and-specific-relief.pdf
The article discusses the application by the Supreme Court of India of principles of laws of contract and specific relief in a case for enforcement of a development contract in its judgment in the case of Her Highness Maharani Shantidevi P. Gaikwad v. Savjibhai Haribhai Patel, that the Supreme Court decided in 2001. The article discusses minutely the principles applicable to development contracts and suggests that the principles given in the case needs reconsideration
Supreme Court Cases cited as (2001) 1 SCC (Jour) 40
In four Indian States, daughters have rights in coparcenery property like sons do. A central law ... more In four Indian States, daughters have rights in coparcenery property like sons do. A central law will avoid conflicts.
Click or copy this link for this article: https://obiterdictadotin.files.wordpress.com/2019/06/state-amendments-to-hindu-succession-act-and-conflict-of-laws-need-for-law-reform.pdf
(Important Note: This article was published in 2001. The law, the Hindu Succession Act 1955, was amended in 2005 to bring uniform provisions applicable throughout India)
Five States in India have amended the law relating to coparcenary property. Four States, viz., Maharashtra, Andhra Pradesh, Tamil Nadu and Karnataka, have conferred upon daughters a birthright in coparcenary property. Kerala has abolished the joint family system among Hindus. The object of this article is to explore the conflicts which may arise due to operation of different laws in different States in India. It also asks for a uniform law in India to govern daughters in Hindu families.
Chapter in “Secrets of Good Teaching” edited by Dr Viney Kirpal and published in 2006 by the ICFAI University Press, Hyderabad, India.
Books by Nilima Bhadbhade
In Indian law, two factors restricting grant of specific performance or injunction are greatly in... more In Indian law, two factors restricting grant of specific performance or injunction are greatly influenced by contract terms. In order to succeed the plaintiff must show that compensation is not adequate (the inadequacy test), and the decree is capable of effective enforcement (the test of effective enforcement). The inadequacy test does not feature in civil law systems and international conventions, and makes specific performance an exceptional remedy. It also renders the grant of relief uncertain, and discourages promisees from seeking specific relief.
This book explores whether specific performance should be available as a general, rather than exceptional remedy, by removing or relaxing the restriction of inadequacy test. It examines the extent to which limitations are necessary, and whether their limiting effect can be lessened. The book thoroughly investigates and critically analyses various Indian judgments involving question of inadequacy or irreparable loss in contract related proceedings. This work also draws from the experiences of practicing advocates, academic writings, observations and decisions of Indian courts.
POLLOCK & MULLA’S The Indian Contract and Specific Relief Acts is a widely acclaimed classic and ... more POLLOCK & MULLA’S The Indian Contract and Specific Relief Acts is a widely acclaimed classic and an authority on the law of contract and specific relief. The first edition was published in 1905.
This fourteenth edition of Pollock & Mulla’s The Specific Relief Act, 1963 (the 100 year old trea... more This fourteenth edition of Pollock & Mulla’s The Specific Relief Act, 1963 (the 100 year old treatise) discusses decisions of High Courts and the Supreme Court of India, and also decisions of highest courts from common law jurisdictions, viz. United Kingdom, Australia, Canada, Singapore, Malaysia, of the past decade have also been discussed.
This fourteenth edition of Pollock & Mulla’s The Indian Contract Act, 1872 (the 100 year old trea... more This fourteenth edition of Pollock & Mulla’s The Indian Contract Act, 1872 (the 100 year old treatise) discusses decisions of High Courts and the Supreme Court of India, and also decisions of highest courts from common law jurisdictions, viz. United Kingdom, Australia, Canada, Singapore, Malaysia, of the past decade have also been discussed. The edition states the law as reported until September 2011.
POLLOCK & MULLA’S The Indian Contract and Specific Relief Acts is a widely acclaimed classic and ... more POLLOCK & MULLA’S The Indian Contract and Specific Relief Acts is a widely acclaimed classic and an authority on the law of contract and specific relief. The first edition was published in 1905.
"The book states the background of India, and its law and legal system. It deals with all aspects... more "The book states the background of India, and its law and legal system. It deals with all aspects of contract law of India. It states the areas dealt by its Indian Contract Act and the extent to which areas not covered by statutory law, are governed either by common law, or principles laid down by the higher courts of India.
It also states the law affecting particular transactions, viz. sale of goods, compromises, agency, bailment, guarantees, partnership.
The treatment of the subject highlights transactional aspects and drafting considerations"
ISBN: 9789065449412, 2012
POLLOCK & MULLA’S The Indian Contract and Specific Relief Acts is a widely acclaimed classic and ... more POLLOCK & MULLA’S The Indian Contract and Specific Relief Acts is a widely acclaimed classic and an authority on the law of contract and specific relief. The first edition was published in 1905.
"The book states the background of India, and its law and legal system. It deals with all aspects... more "The book states the background of India, and its law and legal system. It deals with all aspects of contract law of India. It states the areas dealt by its Indian Contract Act and the extent to which areas not covered by statutory law, are governed either by common law, or principles laid down by the higher courts of India.
It also states the law affecting particular transactions, viz. sale of goods, compromises, agency, bailment, guarantees, partnership.
The treatment of the subject highlights transactional aspects and drafting considerations."
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Papers by Nilima Bhadbhade
Click or copy this link for a preview of this article: https://books.google.com/books/about/Formation_and_Third_Party_Beneficiaries.html?id=FkBFDwAAQBAJ
This doctrine of privity was incorporated into the Indian law before the Indian Contract Act 1872 was enacted. Althouth the Act does not state the privity rule, it’s existence in the Indian law is attributed to the language of the provisions of the Act, and also as incorporation of the English law into the Indian law. Indian judgments have found ways around the rule in the well-accepted exceptions also found in the English law, recognition of some exceptions in the peculiar Indian circumstances, and by classifying the privity rule as a rule of procedure rather than in substance.
Click or copy this link for the article: https://obiterdictadotin.files.wordpress.com/2019/06/a-close-look-at-the-free-look-option-in-insurance-policies.pdf
“Free-look period” provisions in insurance policies give to an insured the very important right to withdraw from his insurance contract that he has already concluded, and give him time time for thought so that he can take a conscious decision about ending the insurance contract. Free-look period provisions are mandatory in life and health insurance policies. This article analyses free-look provisions in different statutory instruments that mandate the provision, and in sample policy wordings, brochures and free-look cancellation forms. This article examines the true purpose of this provision and its use, and proceeds to posit that this provision gives to the insured an additional right to withdraw from the contract, and that it does not and cannot have the effect of terminating or extinguishing the rights of an insured under law. It suggests a model standard free-look provision.
Click or copy this link for the article: https://obiterdictadotin.files.wordpress.com/2019/06/exceptional-nature-of-specific-performance-in-the-indian-law.pdf
"In Indian law, specific relief giving enforced performance of a contract is by way of a decree of specific performance, or injunction – prohibitory or mandatory. But it is granted as an exception, in cases where compensation either is not ascertainable or is inadequate, and where it is possible of effective enforcement.
A plaintiff seeking specific performance must satisfy ‘ the inadequacy test’ at the threshold, which makes specific performance an exceptional remedy. Although other factors, viz. plaintiff’s conduct, and exercise of discretion by the Court affect availability of specific performance, this article discusses the role of the inadequacy test in the grant of specific relief. Even though the inadequacy test is fulfilled, the Court must be able to make its decree enforceable. This limitation on court’s power is also discussed. The article supports the view that specific performance must be available as a routine remedy, so that a promisee can choose specific performance."
Click or copy this link for the article: https://obiterdictadotin.files.wordpress.com/2019/06/simplifying-insurance-policies-e28093-importance-of-plain-language.pdf
The article proposes that insurers should offer insurance policies in plain language. It discusses examples and illustrations from policies of health insurance. Using plain language will help the insured in understanding what he has bought, and also officers of insurance companies in taking fast and effective decisions. Shifting to plain language requires getting over the fear and anxiety of shedding legalese. The article also gives links to articles, handbooks and websites about plain language. The entire article is posted with permission from the IRDA Journal.
Click or copy this link for this article:https://obiterdictadotin.files.wordpress.com/2019/06/stamp-duty-on-powers-of-attorney-authorising-sale-of-immovable-property.pdf
Powers-of-Attorney (POA) and transactions of immovable property are liable to stamp duty under the State (not Central) laws of India. Stamp duty is a revenue for the government. Ordinarily, a POA carries very small amount of stamp duty. However, in 2008, the Bombay Stamp Act was amended and a POA authorising sale of immovable property was liable for the same stamp duty as a conveyance of immovable property. Laws in other states make similar provisions. The article criticises this Amendment.
Click or copy this link for this article: https://obiterdictadotin.files.wordpress.com/2019/06/supreme-court-on-a-development-contract-an-analysis-based-on-principles-of-contract-and-specific-relief.pdf
The article discusses the application by the Supreme Court of India of principles of laws of contract and specific relief in a case for enforcement of a development contract in its judgment in the case of Her Highness Maharani Shantidevi P. Gaikwad v. Savjibhai Haribhai Patel, that the Supreme Court decided in 2001. The article discusses minutely the principles applicable to development contracts and suggests that the principles given in the case needs reconsideration
Click or copy this link for this article: https://obiterdictadotin.files.wordpress.com/2019/06/powers-of-attorney-e28093-the-fundamentals-2.pdf
Principles are discussed with reference to a power of attorney for selling or purchasing immovable property; there are also other examples. The article states the law applicable in India.
Click or copy this link for this article: https://obiterdictadotin.files.wordpress.com/2019/06/state-amendments-to-hindu-succession-act-and-conflict-of-laws-need-for-law-reform.pdf
(Important Note: This article was published in 2001. The law, the Hindu Succession Act 1955, was amended in 2005 to bring uniform provisions applicable throughout India)
Five States in India have amended the law relating to coparcenary property. Four States, viz., Maharashtra, Andhra Pradesh, Tamil Nadu and Karnataka, have conferred upon daughters a birthright in coparcenary property. Kerala has abolished the joint family system among Hindus. The object of this article is to explore the conflicts which may arise due to operation of different laws in different States in India. It also asks for a uniform law in India to govern daughters in Hindu families.
Click or copy this link for this article:https://obiterdictadotin.files.wordpress.com/2019/06/growing-up-as-a-teacher.pdf
Good teaching can be learnt, especially by observing good teachers. Good teaching is not teaching, but enabling students so that they learn themselves. With very simple techniques, a teacher can generate interest among her students, so that they are encouraged to learn.
Click or copy this link for a preview of the book:https://books.google.com/books/about/Secrets_of_Good_Teaching.html?id=sMzS15UBro8C
Books by Nilima Bhadbhade
This book explores whether specific performance should be available as a general, rather than exceptional remedy, by removing or relaxing the restriction of inadequacy test. It examines the extent to which limitations are necessary, and whether their limiting effect can be lessened. The book thoroughly investigates and critically analyses various Indian judgments involving question of inadequacy or irreparable loss in contract related proceedings. This work also draws from the experiences of practicing advocates, academic writings, observations and decisions of Indian courts.
It also states the law affecting particular transactions, viz. sale of goods, compromises, agency, bailment, guarantees, partnership.
The treatment of the subject highlights transactional aspects and drafting considerations"
It also states the law affecting particular transactions, viz. sale of goods, compromises, agency, bailment, guarantees, partnership.
The treatment of the subject highlights transactional aspects and drafting considerations."
Click or copy this link for a preview of this article: https://books.google.com/books/about/Formation_and_Third_Party_Beneficiaries.html?id=FkBFDwAAQBAJ
This doctrine of privity was incorporated into the Indian law before the Indian Contract Act 1872 was enacted. Althouth the Act does not state the privity rule, it’s existence in the Indian law is attributed to the language of the provisions of the Act, and also as incorporation of the English law into the Indian law. Indian judgments have found ways around the rule in the well-accepted exceptions also found in the English law, recognition of some exceptions in the peculiar Indian circumstances, and by classifying the privity rule as a rule of procedure rather than in substance.
Click or copy this link for the article: https://obiterdictadotin.files.wordpress.com/2019/06/a-close-look-at-the-free-look-option-in-insurance-policies.pdf
“Free-look period” provisions in insurance policies give to an insured the very important right to withdraw from his insurance contract that he has already concluded, and give him time time for thought so that he can take a conscious decision about ending the insurance contract. Free-look period provisions are mandatory in life and health insurance policies. This article analyses free-look provisions in different statutory instruments that mandate the provision, and in sample policy wordings, brochures and free-look cancellation forms. This article examines the true purpose of this provision and its use, and proceeds to posit that this provision gives to the insured an additional right to withdraw from the contract, and that it does not and cannot have the effect of terminating or extinguishing the rights of an insured under law. It suggests a model standard free-look provision.
Click or copy this link for the article: https://obiterdictadotin.files.wordpress.com/2019/06/exceptional-nature-of-specific-performance-in-the-indian-law.pdf
"In Indian law, specific relief giving enforced performance of a contract is by way of a decree of specific performance, or injunction – prohibitory or mandatory. But it is granted as an exception, in cases where compensation either is not ascertainable or is inadequate, and where it is possible of effective enforcement.
A plaintiff seeking specific performance must satisfy ‘ the inadequacy test’ at the threshold, which makes specific performance an exceptional remedy. Although other factors, viz. plaintiff’s conduct, and exercise of discretion by the Court affect availability of specific performance, this article discusses the role of the inadequacy test in the grant of specific relief. Even though the inadequacy test is fulfilled, the Court must be able to make its decree enforceable. This limitation on court’s power is also discussed. The article supports the view that specific performance must be available as a routine remedy, so that a promisee can choose specific performance."
Click or copy this link for the article: https://obiterdictadotin.files.wordpress.com/2019/06/simplifying-insurance-policies-e28093-importance-of-plain-language.pdf
The article proposes that insurers should offer insurance policies in plain language. It discusses examples and illustrations from policies of health insurance. Using plain language will help the insured in understanding what he has bought, and also officers of insurance companies in taking fast and effective decisions. Shifting to plain language requires getting over the fear and anxiety of shedding legalese. The article also gives links to articles, handbooks and websites about plain language. The entire article is posted with permission from the IRDA Journal.
Click or copy this link for this article:https://obiterdictadotin.files.wordpress.com/2019/06/stamp-duty-on-powers-of-attorney-authorising-sale-of-immovable-property.pdf
Powers-of-Attorney (POA) and transactions of immovable property are liable to stamp duty under the State (not Central) laws of India. Stamp duty is a revenue for the government. Ordinarily, a POA carries very small amount of stamp duty. However, in 2008, the Bombay Stamp Act was amended and a POA authorising sale of immovable property was liable for the same stamp duty as a conveyance of immovable property. Laws in other states make similar provisions. The article criticises this Amendment.
Click or copy this link for this article: https://obiterdictadotin.files.wordpress.com/2019/06/supreme-court-on-a-development-contract-an-analysis-based-on-principles-of-contract-and-specific-relief.pdf
The article discusses the application by the Supreme Court of India of principles of laws of contract and specific relief in a case for enforcement of a development contract in its judgment in the case of Her Highness Maharani Shantidevi P. Gaikwad v. Savjibhai Haribhai Patel, that the Supreme Court decided in 2001. The article discusses minutely the principles applicable to development contracts and suggests that the principles given in the case needs reconsideration
Click or copy this link for this article: https://obiterdictadotin.files.wordpress.com/2019/06/powers-of-attorney-e28093-the-fundamentals-2.pdf
Principles are discussed with reference to a power of attorney for selling or purchasing immovable property; there are also other examples. The article states the law applicable in India.
Click or copy this link for this article: https://obiterdictadotin.files.wordpress.com/2019/06/state-amendments-to-hindu-succession-act-and-conflict-of-laws-need-for-law-reform.pdf
(Important Note: This article was published in 2001. The law, the Hindu Succession Act 1955, was amended in 2005 to bring uniform provisions applicable throughout India)
Five States in India have amended the law relating to coparcenary property. Four States, viz., Maharashtra, Andhra Pradesh, Tamil Nadu and Karnataka, have conferred upon daughters a birthright in coparcenary property. Kerala has abolished the joint family system among Hindus. The object of this article is to explore the conflicts which may arise due to operation of different laws in different States in India. It also asks for a uniform law in India to govern daughters in Hindu families.
Click or copy this link for this article:https://obiterdictadotin.files.wordpress.com/2019/06/growing-up-as-a-teacher.pdf
Good teaching can be learnt, especially by observing good teachers. Good teaching is not teaching, but enabling students so that they learn themselves. With very simple techniques, a teacher can generate interest among her students, so that they are encouraged to learn.
Click or copy this link for a preview of the book:https://books.google.com/books/about/Secrets_of_Good_Teaching.html?id=sMzS15UBro8C
This book explores whether specific performance should be available as a general, rather than exceptional remedy, by removing or relaxing the restriction of inadequacy test. It examines the extent to which limitations are necessary, and whether their limiting effect can be lessened. The book thoroughly investigates and critically analyses various Indian judgments involving question of inadequacy or irreparable loss in contract related proceedings. This work also draws from the experiences of practicing advocates, academic writings, observations and decisions of Indian courts.
It also states the law affecting particular transactions, viz. sale of goods, compromises, agency, bailment, guarantees, partnership.
The treatment of the subject highlights transactional aspects and drafting considerations"
It also states the law affecting particular transactions, viz. sale of goods, compromises, agency, bailment, guarantees, partnership.
The treatment of the subject highlights transactional aspects and drafting considerations."
A sub-contractor submitted his bid to a contractor, who wanted it for making an estimate for submitting his own bid. The contractor appointed a committee which approved subcontractor's bid. Like earlier transactions between the two, the contractor did not give a formal acceptance letter to the sub-contractor. Before the contractor could submit his ownbid, the sub-contractor realised a mistake, and withdrew his bid. The contractor obtained a bid from another sub-contractor, and completed the work, and filed a suit for recovering compensation alleging that there was a contract formed by the sub-contractor's bid.
Click or copy this link for the case : https://obiterdictadotin.files.wordpress.com/2019/06/mercury-builders-v-earth-movers-v2.pdf
A sub-contractor submitted his bid to a contractor, who wanted it for making an estimate for submitting his own bid. Before the contractor could submit his bid, the sub-contractor realised a mistake, and withdrew his bid. The contractor obtained a bid from another sub-contractor, and completed the work, and filed a suit for recovering compensation alleging that there was a contract formed by the sub-contractor's bid.
Click or copy this link for the case : https://obiterdictadotin.files.wordpress.com/2019/06/mercury-builders-v-earth-movers.pdf
A developer has agreed to develop a plot for its owner, to construct a building of flats, and to pay the owner an amount as price and give one flat in the new building. The agreement has a provision for liquidated damages.
Some payment gets delayed. The owner dies. His heirs want two flats, and obstruct the construction. Negotiations ensue. Construction gets delayed. The heirs terminate the agreement under its terms, demand compensation and start negotiating with another developer. They promise to pay the developer the cost of the work completed. The developer files a suit for specific performance, injunction, and damages (in substitution and addition).
Click or copy this link for the case : https://obiterdictadotin.files.wordpress.com/2019/06/sunshine-builders-v-lata.pdf
An owner of a twin-house agrees to sell one to a purchaser under a contract. The contract provides that the sale will happen after six months, and that handing over possession and full payment shall be made at that time. It also provides that the owner will not be entitled to terminate the agreement, but only claim balance price with a specified high rate of interest. This contract remains without registration.
The purchaser has pre-paid part of the amount. The owner has handed over possession of the house after three months, again agreeing that his claim was restricted to the price and interest.
The owner never completes the sale deed, despite many demands.
After the period of limitation for a suit for specific performance is over, the owner files a suit for possession. The purchaser claims that he can retain possession under the terms of the contract, and the doctrine of part-performance.
(The case relates to the impact of the Amendment of 2001 to the Registration Act 1963, which disables the defence of part-performance if the contract for transfer of property is not registered.)
Click or copy this link for the case : https://obiterdictadotin.files.wordpress.com/2019/06/kumar-v-jamnalal-gadiwala.pdf
A land-owner hands over development of his land for construction of flats. After completion, the land will be leased to the association that the developer will form. The building is completed. Flats are sold and occupied. The lease is awaited.
The building falls down following an earthquake. The flat-owners move away hoping that the building will be reconstructed. Some who have insurance receive the insurance amounts.
The land-owner clears the site to commence development afresh, and starts negotiation with another developer. The flat-purchasers seek injunction and other remedies.
Click or copy this link for the case: https://obiterdictadotin.files.wordpress.com/2019/06/flat-purchasers-of-gaganvihar-v-aroon-joseph.pdf
A man dies giving by his will a large proportion to his elder son, a prime immovable property (a house) to a childhood friend, and other movable and immovable properties among his wife, mother and children. The will 'also states: All that remains' is given to the elder son.
After his death, the elder son as executor of the will, seeks administration of estate. He informs the friend that by the will she is the owner of the house.
The friend does not like association with the man and his properties, and disclaims the bequest made to her. She files a civil suit against all heirs of the testator seeking a declaration that she is not owner of the house because of the disclaimer.
In this suit, the elder son sets up the will, and asserts ownership of the friend despite her disclaimer, else ownership to the house as 'all that remains'. The other heirs ask for their shares as heirs of an intestate of the entire properties, in any case in the house because the house is not 'all that remains'.
After hearing evidence, the civil court declares that the will is valid, the disclaimer is valid, and the house falls within 'all that remains'.
The other heirs file an appeal from the judgment.
Click or copy this link for the case: https://obiterdictadotin.files.wordpress.com/2019/06/kusum-and-others-v-amit.pdf
A man dies giving by his will a large proportion to his elder son, a prime immovable property (a house) to a childhood friend, and other movable and immovable properties among his wife, mother and children. The will 'also states: All that remains' is given to the elder son.
After his death, the elder son as executor of the will, seeks administration of estate. He informs the friend that by the will she is the owner of the house.
The friend does not like association with the man and his properties, and disclaims the bequest made to her. She files a civil suit against all heirs of the testator seeking a declaration that she is not owner of the house because of the disclaimer.
In this suit, the elder son sets up the will, and asserts ownership of the friend despite her disclaimer, else ownership to the house as 'all that remains'. The other heirs ask for their shares as heirs of an intestate of the entire properties, in any case in the house because the house is not 'all that remains'.
Click or copy this link for the case: https://obiterdictadotin.files.wordpress.com/2019/06/sameera-v-amit-kusum.pdf
A garment boutique sends a quotation to an interested buyer in London. Its borchure states that the garments shown are made from cloth made by a particular clothmaker. The order is received.
In the meantime, the particular clothmaker closes business. The boutique calls upon the purchaser to select cloth made by other specified suppliers. In response the purchaser cancels the deal and asks for return of advance amount paid. The boutique indicates that it is ready to supply garments. The purchaser does not reply.
The boutique files a suit in India for compensation covering loss of profits and other losses. The purchaser contests jurisdiction, alleges own losses, and operation of the doctrine of frustration.
Click or copy this link for the case: https://obiterdictadotin.files.wordpress.com/2019/06/sarjus-v-brightn-green-garments.pdf
The wife of a divorced marriage is granted custody of the minor child, and the husband has visiting rights. The child owns a house inherited from another relative.
For the benefit of the child, the wife as guardian contracts to sell the house to X, and agrees to obtain the court’s permission required by law. She purchases two flats in the child’s name from the advance (half) purchase amount received from X.
The husband also, as guardian, contracts to sell the house to Y, and agrees to obtain court’s permission required by law, and receives 60 % of price agreed with Y.
The child dies. X files civil suit against the wife, the husband and Y for declaration and specific performance. The suit is contested between X and Y because the wife admits the claim of X, and the husband does not appear in the proceeding.
Click or copy this link for the case: https://obiterdictadotin.files.wordpress.com/2019/06/rajesh-builders-v-sumitra-gandhi.pdf
An artiste has designed a mural that stands on a wall of a wellknown theater house owned by a municipal corporation. The mural becomes the identity mark for the city.
The corporation has decided to demolish the theater house to construct a multiplex scheme. This requires removing the wall with the mural.
The artist asserts the moral right of paternity and integrity, and seeks temporary and permanent injunction restraining the corporation from demolishing the wall. The corporation alleges its right to demolish as the owner of the theaterhouse.
Click or copy this link for the case: https://obiterdictadotin.files.wordpress.com/2019/06/pratap-sundar-v-hastipur-municipal-corporation.pdf
The Bharatiya group has expanded and diversified into many fields and has considerable goodwill in India and abroad. The word ‘Bharatiya’ is not registered as a trade mark in India, but is registered in other coutries for hotel and related services like tours and travels. Bharatiya is a word of the Hindi language. It is pronounced as Bhᾱratiya, and means 'Indian'.
One senior manager with surname Bharatiya working in one company of the group left the company and set up another company for manufacturing printers and peripherals. The new company carries the name ‘Bharatiya’.
The Bharatiya group companies file a suit alleging passing off, and ask for a temporary injunction to restrain the new company and the manager from using the trade mark and trade name Bharatiya.
Click or copy this link for the case: https://obiterdictadotin.files.wordpress.com/2019/06/bharatiya-manufacturing-v-bharatiya-printers..pdf
A married woman and mother of two children goes missing, and is found unconscious on a railway station after some time and admitted for treatment. She has lost her memory. Her husband and relatives find her after some time, and meet her. She regains memory in stages. She cannot remember the events of the time she went missing until she was found on the railway station. She deliberately avoids meeting the press.
A journalist impersonating as a social worker talks to her and publishes her story in his newspaper with her photograph. This publication affects her social life, and her relations with her husband and relatives because they start casting doubts about the events after she went missing. Her husband alleges her infidelity, and the two divorce by consent.
She files a civil suit against the journalist, and the proprietor of the newspaper for compensation, which is dismissed as without cause of action. The Foundation then files a writ petition in the High Court against the newspaper proprietor and others for appropriate reliefs.
Click or copy this link for the case: https://obiterdictadotin.files.wordpress.com/2019/06/happy-society-foundation-v-verity-newspapers.pdf
Avinash books in advance several tickets through travel-agent Shubh Yatra for his relatives attending his daughter’s wedding, indicating that many travellers were senior citizens and there might be come cancellations. The airline tickets do not mention about refund.
Two days before the travel, he informs Shubh Yatra to cancel tickets of some travellers. Shubh Yatra again asks whether tickets should be cancelled at all when they were non-refundable because they were group bookings, and that refunds can happen according to the airline’s policy. Being busy with wedding preparations and the wedding itself, Avinash is unable to respond.
After correspondence, Avinash files a complaint in the consumer forum alleging that Shubh Yatra has been deficient in giving services, because the tickets have not been cancelled as per instructions.
The tickets, all correspondence and affidavits of Avinash, a relative, and representative of Shubh Yatra are filed.
Click or copy this link for the case: https://obiterdictadotin.files.wordpress.com/2019/06/avinash-devasthali-v-shubh-yatra-travels-ltd-1.pdf
Rudra became owner of premises under the terms of a consent decree dividing the property between him and his brother and sister. He then terminated the tenancy of his tenant Annapurna Caterers (a partnership firm) for reasons of his own need for accommodation, and also because Annapurna had carried out permanent structural changes, and had unlawfully assigned and sub-let the premises.
Annapurna denies the requirement of Rudra, and defends that the lease deed being signed by the brother and the sister, Rudra has nor right to terminate; the consent decree was collusive.
Lease deed, correspondence and other documents are filed. Rudra, his wife, his son, and one partner of Annapurna have filed affidavits and have been cross-examined.
Click or copy this link for the case: https://obiterdictadotin.files.wordpress.com/2019/06/rudra-mehra-v-annapurna-caterers-1.pdf
Go-green agrees to supply equipment to EcoEnviro for the latter’s further contract with a client for a project abroad. The goods carry a 12 months warranty from date of shipment ‘or as otherwise expressly agreed…’. The contract terms require GoGreen to give a Performance Bank Guarantee till completion of warranty period.
There is a delay in completing various stages of the supply. All goods have been inspected by EcoEnviro before being despatched to the foreign client. Payments for supplies made are received by GoGreen.
GoGreen hands over a Bank Guarantee to EcoEnviro on terms ‘until complete delivery of the goods or performance of work’, which, GoGreen alleges, have been changed by EcoEnviro and EcoEnviro’s banks. GoGreen alleges that these terms are against the terms of the contract itself.
Eco-Enviro have invoked the Bank Guarantee after the 12 months. They allege that the warranty period stood extended as implied from conduct of parties.
GoGreen has filed a suit for declaration that EcoEnviro is not entitled to invoke the bank guarantee and other reliefs, and asks for temporary injunction restraining EcoEnviro from receiving the amount under the guarantee. Documents and affidavits of parties have been filed for the hearing of interim application of temporary injunction.
Click or copy this link for the case: https://obiterdictadotin.files.wordpress.com/2019/06/go-green-industries-vs-eco-enviro-india-pvt-ltd-1.pdf
Vidyadhar Rao, a retired army officer applied to a depository (Investnet) for an account so that he could purchase shares of a specific company. He had never traded in securities before. A representative of Investnet advised him a plan that would carry a deposit of an amount. Rao signed some papers, but did not receive any copies.
Rao applied for the shares, but no shares were allotted to him. He asked for closing the account and for refund of deposit. Investnet refused on the basis of a provision in the contract that the deposit amount was not a deposit but brokerage, and that Rao could have recovered it as a discount when he traded in shares. If the entire amount were to be recovered in this manner, Rao would have to do a very large volume of online trading.
Rao filed a complaint in the consumer forum seeking refund of the amount with interest. The entire correspondence and agreements have been filed. Rao and a representative of Investnet have filed affidavits. The website of Investnet does not give details of the plan sold to Rao.
After hearing the parties, the District Consumer Forum dismissed the complaint. Rao has filed appeal from the judgment.
Click or copy this link for the case: https://obiterdictadotin.files.wordpress.com/2019/06/vidyadhar-rao-v-investnet-co-ltd-1.pdf
Aditya promises to pay a substantial amount in instalments to Matrubhumi, an educational instution, in response to its public request seeking donations for the purpose of constructing a new building. Matrubhumi agrees to his condition that it will name the building after his late mother, and also to few other conditions.
After paying one instalment, he does not have sufficient funds, and expresses inability to pay later amounts. Matrubhumi suffers loss having to complete the construction at a higher cost.
Matrubhumi files a suit for recovering compensation for breach of this promise. He defends that the promise is without consideration.
The public announcement, all correspondence that followed between the parties, and the documents showing the cost of construction are filed. A representative of Matrubhumi and Aditya have filed affidavits, and have been crossexamined.
Click or copy this link for the case: https://obiterdictadotin.files.wordpress.com/2019/06/matrubhumi-society-v-aditya-kashyap-1.pdf
Rajendra, owner of a twin-house, contracts to sell one house to Jamnalal under a contract. The contract provides that the sale will happen after six months, and that possession shall be handed over, and full payment shall be made, at that time. It also provides that Rajendra will not be entitled to terminate the agreement, but only claim balance price with a specified high rate of interest. This contract remains without registration.
On Jamnalal’s request, Rajendra permits the purchaser and his family to reside in the house on licence basis recorded in a ‘leave and licence’ agreement. The licence period expires and Rajendra files this suit for recovering possession and for mesne profits.
Jamnalal contends that the leave and licence agreement was a cover for handing over possession of the house to Rajendra under the contract of sale. He seeks protection of his possession under the doctrine of part-performance. Jamnalal counterclaims for specific performance of the contract and asks for the sale deed to complete the transaction.
The contract, the leave and licence agreement, the receipts and correspondence have been filed. Rajendra and Jamnalal have filed affidavits and have been cross-examined.
(The case relates to the impact of the Amendment of 2001 to the Registration Act 1963, which disables the defence of part-performance if the contract for transfer of property is not registered.)
Click or copy this link for the case: https://obiterdictadotin.files.wordpress.com/2019/06/rajendra-kumar-v-jamnalal-batliwala-1.pdf
The accused Vijay Singh is an attendant in a criminal court. He is accused of stealing case-papers of a case. The police seized the papers from him. The clerk in the court having custody of case-papers, and the witnesses to the seizure are examined and crossexamined.
Click or copy this link for the case: https://obiterdictadotin.files.wordpress.com/2019/06/state-of-maharashtra-v-vijay-singh-1.pdf
Aravind is a clerk employed in Jayanti Bank. He is also an active office-bearer of the employee’s trade union. He has received promotion as Manager, but without managerial powers.
The Bank issues to him an order of transfer, but Aravind refused the transfer, or to hand over charge to another officer. He does not carry out some tasks allotted to him, because of which the Bank was fined. He gives a statement to the media making allegations against the Bank after the Bank suspended him.
The Bank conducts a disciplinary enquiry on charges of wilful disobedience and insubordination, acting prejudicial to the interests of the Bank and attempts to defame the Bank.
Aravind approaches the Labour Court seeking reinstatement.
Click or copy this link for the case: https://obiterdictadotin.files.wordpress.com/2019/06/aravind-kumar-v-jayanti-bank-1.pdf
Amit’s father dies giving by his will a large proportion to him, a prime immovable property (a house) to a childhood friend, and other movable and immovable properties among his wife Kusum, his mother and children. The will also states: ‘Everything else, I am giving to’ Amit.
In reply, the friend has disclaimed her bequest. The other relatives challenge the validity of the will, and seek partition of the estate of the deceased under the law of intestate succession.
Various ‘suspicious circumstances’ surround the will. The testator has made the will a day before his surgical operation. The lawyer, the doctor who examined him, and the attesting witnesses are associated with Amit. The testator is literate, yet the will has his thumb impression. The will is drafted without the testator consulting his personal lawyer.
The petitioner (Amit), one attesting witness, the doctor who examined the testator and the respondent wife filed affidavits and have been cross-examined.
Click or copy this link for the case: https://obiterdictadotin.files.wordpress.com/2019/06/amit-ranjan-v-kusum-ranjan-1.pdf
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https://obiterdictadotin.files.wordpress.com/2019/09/commercial-law-must-be-certain-and-predictable.pdf